The inadmissibility of confession statements and the requirement of incriminating evidence to establish involvement in a crime.

The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail.

2. The petitioner is the third accused in OR No.2/2023 of the Ommala Forest Station in Mannarkkad Forest Range, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 27 (1) e (iv) of the Kerala Forest Act and Sec.2(16), 9, 29 read with Sec.31 of the Wild Life Protection Act, 1972.

3. The crux of the prosecution case is that: a person named, Karamadayan, a tribal was arrested from the reserve forest area by the forest officials with a country made gun. He was taken into custody with the fire arm. The said person confessed to the forest officials that he was carrying the country made gun for the purpose of hunting wild animals. He further alleged that the gun was given to him by the third accused. Thus, the accused has committed the above offences.

4. Heard; Sri. Babu S. Nair, the learned counsel appearing for the petitioners, Sri, Nagaraj Narayanan, the learned Special Public Prosecutor.

5. Sri. Babu S Nair strenuously argued that the petitioner has been falsely implicated in the crime. Other than for the alleged confession statement of the first accused there is nothing on record to connect the petitioner with the crime. The so called confession statements are inadmissible in evidence, in view of the law laid down by this Court in Luca Beltrami and Others v. State of Kerala, [2020 (4) KHC 603], Prakashan v. State of Kerala [2023 (1) KHC 536] and Gopi v. State of Kerala [2024 KHC 18]. He also relied on the provisions under Section 72 of the Act, Article 20(3) of the Constitution of India and Section 25(3) of the Evidence Act, to fortify his contention that a confession recorded by a Forest Officer cannot be used in evidence.

According to him, the whole case set up by the prosecution, against the petitioner, based on the alleged confession of the first accused is a nullity as held by this Court in Prakasan’s case. He further contended that the petitioner is the law abiding citizen and has no criminal antecedents. The petitioner is ready to abide by any stringent conditions that may be imposed by this Court.

He is also willing to co-operate with the investigation.

6. The learned Special Public Prosecutor seriously opposed the application. The Investigating Officer has also filed a bail objection report. The learned Special Public Prosecutor placed reliance on the decisions of the Honourable Supreme Court in Badku Joti Savant v State of Mysore [ AIR 1966 SC 1746] Moti Lal v. Central Bureau of Investigation [2001 KHC 2250] and the decisions of this Court in Forest Range Officer v. Aboobacker[1989 KHC 201] and Kunhali and others v. Forest Range Officer and another [2012 KHC 231], to canvass the position that the confession recorded by the forest officer is admissible in evidence. He contended that the arguments of the learned counsel for the petitioner is untenable. In addition to the above contention, he also submitted that there are other incriminating materials to show the involvement of the petitioner. The petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed.

7. From the materials placed on record, the gist of the prosecution allegation is that, the first accused who was in possession of a fire arm allegedly confessed to the Investigating Officer that the same was given to him by the petitioner.

8. The petitioner has been implicated in the above crime solely on the basis of the confession made by the first accused.

9. Section 72 of the Kerala Forest Act, 1961 reads as follows:-

“ 72. Investing Forest